Argued and Submitted March 18, 2014.
Lane County Circuit Court. 601207124. Ilisa Rooke-Ley, Judge.
George W. Kelly argued the cause and filed the brief for appellant.
Denise G. Fjordbeck waived appearance for respondent State of Oregon.
No appearance for respondent Cam Nguyen.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[268 Or.App. 790] HADLOCK, J.
Father appeals a judgment requiring him to pay child support, contending that the trial court erred in five ways in determining the appropriate amount of support. We agree that the trial court erred in determining father's income and in ordering a rebuttal based on father's access to funds of his ex-wife, and we therefore reverse and remand.
Father and mother have one child, who was born in February 2011. Father lives in Georgia, and mother and the child live in Oregon. In August 2011, the Oregon Department of Justice, Division of Child Support (DCS), initiated a filiation proceeding in which it was determined that father is the biological father of the child. At the conclusion of that proceeding, DCS issued a Notice and Finding of Financial Responsibility requiring father to pay $609 support per month, provide private health-care coverage when available or an additional $163 per month as cash medical support if it was not, and pay past support for the period February 1, 2011 to August 31, 2011, in the amount of $5,404. That notice was based on a child-support worksheet that identified father's monthly income as $5,251 and mother's monthly income as $1,473.33. The notice stated that father's income had been determined using " [p]resumed income for chicken ranchers/farmers in Georgia" and that mother's income had been determined based on " [p]otential minimum wage for Oregon."
Father requested a hearing, and DCS referred the matter to the Office of Administrative Hearings. An administrative law judge (ALJ) presided over a telephonic hearing in May 2012. Both parents participated and testified as witnesses. Father appeared pro se, and mother was represented by counsel and testified through an interpreter. DCS did not participate.
The ALJ made the following factual findings pertinent to this appeal:
" (1) [The child], age one, is the child of [father] and [mother]. The child primarily resides with [mother]. There is no court order or written agreement that grants [father] parenting time with the child. [Father] does not exercise any parenting time with [the child].
[268 Or.App. 791] " (2) [Father] has two other biological children * * *. [Father] resides in a barn on a chicken farm. His ex-wife Tina resides in the primary family home on the farm. The two children live in the primary home with Tina. There is no court order that requires [father] to pay ongoing support for [the two other children].
" (3) [Mother] is employed in a nail salon, working nine hour shifts, six to seven days per week. She earns commissions only in the approximate amount of $1,500 per month. She has worked for this employer for two years.
" (4) [Father] is employed in a nail salon, working eight hour shifts, six days per week. He earns commissions only of $350 to $500 every two weeks. He began this job in December 2011.
" (5) In Oregon, the 10th percentile wage for manicurists is $8.98 per hour. In Georgia, the 10th percentile wage for manicurists is $8.60 per hour. [Mother] resides ...